The immigration-enforcement guidance issued by President Trump Tuesday morning patently aims to shift the presumption against deportation created by President Obama’s guidance.
In 2014, under the guise of setting out “immigration enforcement priorities,” Obama’s Department of Homeland Security established a three-tier system for deportation. This was quite advisedly done under the rubric of “prosecutorial discretion.” Federal agents were instructed to apply prosecutorial discretion as early in the evaluation process as possible, mindful of how sparse were resources to arrest, detain, and deport removable aliens.
The message was clear: If an alien does not fit into the top tier, do not even bother to stop and question him, much less to arrest and commence deportation proceedings. While Obama’s two lower tiers were referred to, in an Orwellian way, as “priorities” (i.e., enforcement “Priority 2” and “Priority 3”), the reality was more like immunity.
Notice the effort to undermine illegal immigration as a basis for taking action. Priority 1 involved offenders who either (a) would be sought by police and national-security agents for reasons having nothing to do with their immigration status, or (b) were not illegal aliens residing in the U.S. because they never (or barely) made it into the country. The underlying (though unstated) principle is that illegally entering or remaining in the United States is not a serious matter per se; rather, it is egregious criminal activity that warrants enforcement action.
Of course, the nature of criminal activity addressed in “Priority 1” was so heinous that law-enforcement would naturally take action without regard to whether the perpetrator was an American or a non-American (legal or illegal). The subliminal point was to eradicate illegal-alien status as a salient consideration — yet to be able to say that enforcement against it was considered a “priority.”
Obama’s second tier addressed the “priority” of “misdemeanants and new immigration violators.” The thrust of this tier, however, was to give the illegal alien a defense against enforcement action. For example, an alien convicted of two misdemeanors, far from being an enforcement priority, was given immunity — agents were told that, for action to be taken, there should be three or more misdemeanors — and that these crimes had to (a) be unrelated to the alien’s illegal status, and (b) involve three separate incidents (i.e., multiple misdemeanors arising out of the same criminal transaction would count as only one conviction). Here, it is important to note that many felony arrests are reduced to misdemeanors in plea bargaining. Thus, this system was designed to insulate from deportation habitual criminals who had managed to avoid felony convictions.
The third tier, “other immigration violations,” is barely worth mentioning. After its having been stressed that agents should exercise “prosecutorial discretion” in connection with enforcing the laws against illegal aliens regarded as non-serious, the “Priority 3” guidance emphasized that these aliens “represent the third and lowest priority for apprehension and removal. Resources should be dedicated accordingly.”
Translation: Leave them alone.
The first thing to notice is Trump’s significant surge of enforcement resources.
As we turn to the new Trump enforcement strategy, we should remember that prosecutorial discretion, properly understood, is not an “immunize lesser criminals” principle; it is a resource allocation doctrine. Thus, the first thing to notice is Trump’s significant surge of enforcement resources: ten thousand additional agents for ICE (the Immigration and Customs Enforcement agency, the DHS component principally responsible for enforcing the immigration laws) and 5,000 additional border-patrol agents (the DHS component responsible for preventing illegal entrance at our borders and ports of entry).
The lesson here is that apologists for illegal aliens will come to rue the end of the dishonest Obama approach to immigration enforcement — the Alinskyite tactic of manipulating language to conceal progressive policy lurches (in the expectation that people will gradually become inured to them), rather than arguing for those policies on their (dubious) merits.
Obama did not so much openly push for the repeal or relaxation of immigration laws; his method was to pretend to enforce them (i.e., pretend that they were a “priority”) while implementing a process that quietly immunized most aliens. When called on it, he and Jeh Johnson, his DHS secretary, would spout “prosecutorial discretion” and tut-tut about the lack of resources to deport any but the most serious offenders — as if they would really have deported many more if only there were the resources to do it.
Trump’s first response is: Okay, then, we’re going to have lots more resources. Not only is he dedicating markedly more federal law-enforcement assets to immigration enforcement. The Trump plan includes an expansion of the “287(g) program” — named for the section of federal immigration law that enables DHS to deputize state and local law-enforcement officers to enforce the laws as if they were federal immigration agents.
This is a night-and-day departure from Obama’s governance. Recall, the Obama Justice Department’s infamous litigation against the state of Arizona owed to the fact that the state was trying to enforce Congress’s laws. Obama took the novel (and to my mind, outrageous) position that states were bound not by federal law but by Obama policy preferences, which, of course, called for non-enforcement.
Trump, in stark contrast, is saying the federal government not only wants the states to enforce Congress’s laws; it wants more state resources so that enforcement is more robust.
This sets the stage for the most notable change in Trump administration guidance, just announced in a memorandum issued by Homeland Security Secretary John Kelly: DHS “no longer will exempt classes or categories of removable aliens from potential enforcement.” Instead, agents are directed to “take enforcement action in accordance with applicable law.”
DHS ‘no longer will exempt classes or categories of removable aliens from potential enforcement.’
Note: In virtually all instances, illegal aliens are removable under applicable law. But even with stepped up resources, it is not possible to remove a population of offenders estimated at upwards of 11 million; nor, contrary to the claims of its scare-mongering critics, is the Trump administration calling for a huge round-up. Instead, action will be taken as removable aliens are encountered in the course of normal law-enforcement operations — operations that will now be more widespread, thanks to the increase in resources.
Because removal requires an investment of resources, it is still necessary to set priorities. Under Secretary Kelly’s guidance, however, the presumption is now in favor of removing illegal aliens, not giving them protection.
Agents have been directed to prioritize enforcement against aliens who have been convicted of any criminal offense — not merely any serious felony. In fact, priorities now include illegal aliens who have merely been charged with a criminal offense, as well as those DHS can show “have committed acts which constitute a chargeable criminal offense” — even if there have not been formal charges filed, let alone a conviction. In a fundamental shift from Obama, the Trump position is that simply being an illegal alien is unlawful and serious; thus, any additional indication of outlaw behavior is sufficient to warrant deportation.
Consistent with this, agents are further admonished to take action against illegal aliens who have defrauded government agencies or abused programs related to public benefits. This is significant. Illegal aliens who were not guilty of serious felonies were generously regarded as “generally law-abiding” under Obama standards; the fact that they were often guilty of fraudulent conduct — in order to represent themselves as lawfully present and employable, or as eligible for public welfare subsidies — was swept under the rug.
Under Trump guidelines, such illegal aliens will no longer be given a pass. Moreover, because much of this fraudulent conduct is committed against state agencies and welfare programs, it becomes even more significant that state police are being deputized to enforce the immigration laws.
Obviously, there will be blowback from groups that lobby in favor of illegal immigrants and from the press. In anticipation of this, the Trump administration is shrewdly establishing a “Victims of Immigration Crime Engagement Office” (VOICE). Under the auspices of providing offender information to victims of offenses committed by criminal aliens, VOICE will be pushing into the public domain the kind of information that has been suppressed for the last eight years. No longer will there be a one-sided narrative of the value illegal immigrants add to American society; the wages of indulging a massive illegal-immigrant population will also be highlighted.
Both Trump fans and detractors will note that his newly announced priorities studiously exclude the beneficiaries of President Obama’s controversial executive orders on DACA and DAPA — i.e., deferred action on “child arrivals” (aliens who are illegal through no fault of their own but because they were brought here illegally as children), and on the illegal-immigrant parents of U.S. citizens and permanent residents. Obama-era DHS guidance on those individuals is expressly exempted from the Trump guidance’s overarching reversal of Obama policy.
Trump promised during the campaign to reverse Obama’s executive orders but has thus far refrained from doing so. This will clearly fuel speculation either that those promises will not be fulfilled or that at least some of the relief Obama unilaterally (and unlawfully) provided will eventually be codified in legislation.
President Trump may be betting that if he shows aggressiveness, resolve, and results in overall immigration enforcement, his supporters will forgive (and his critics cheer) amnesty for “DREAMers” and sympathetic aliens who are close relatives of Americans. I suspect he’s right about that.
— Andrew C. McCarthy is a senior policy fellow at the National Review Institute and a contributing editor of National Review.